Persistent Legislative State

Late Sunday night federal lawmakers empowered Terri Schiavo's parents to demand a new trial in federal court. Early Tuesday, their case was rejected.

Schiavo has been in a persistent vegetative state – with the appearance of wakefulness, but essentially lacking conscious brain function – since she suffered brain damage in 1990. Her husband, Michael Schiavo, has fought bitterly through the courts against her parents, Bob and Mary Schindler, to allow the removal of the feeding tube that is keeping the Florida woman alive. On Friday, the tube was removed for the third time on the orders of Pinellas Circuit Court Judge George Greer, prompting Congress' intervention allowing the Schindlers into federal court.

Some legal experts argue that the measure, signed by George W. Bush returning from vacation in the dark of night on Sunday, is transparently unconstitutional because it outstrips Congress' authority to intervene in the judicial system. Proponents of the Schiavo legislation counter that Congress is entitled to intervene because the Florida courts violated Terri Schiavo's constitutional right to due process under the Fourteenth Amendment.

The separation of powers holds that legislators may not reverse the decisions of the courts simply because they disagree with the verdict. For example, legislators can't argue from the purported wrongfulness of disconnecting Schiavo's tube to the conclusion that her right to due process must have been violated. That would be precisely the overreach that the separation of powers is supposed to prevent.

It is circular to attempt to justify congressional intervention as a legitimate defense of Terri Schiavo's right to due process. Legislators cannot establish that Schiavo's right to due process has been violated without establishing that the Florida courts have discriminated against her or people like her. However, in this case, the Florida guardianship system is predicated on thoroughly uncontroversial principles that lawmakers are not willing or authorized to challenge: state control of family law, an individual's right to refuse medical treatment, and the process of guardian selection and review.

Congress can only justify its intervention by appealing to a general principle – however the fact that the legislation applies exclusively to Schiavo undercuts any claim that it is a legitimate defense of universal rights.

Proponents of the Schiavo legislation argue that removing Terri's feeding tube would deprive her of life without due process. But on what grounds can the Florida courts be said to have violated the civil rights of Terri or her family? Someone who wanted to show that Terri had been discriminated against would have to show either that Terri has been singled out for unfair treatment as a member of a powerless minority (equal protection), or the that the Florida guardianship system is somehow intrinsically unfair to people like Terri or her family (substantive or procedural due process).

Terri is disabled, so she belongs to a marginalized minority. But it is absurd to claim that the courts have discriminated against her because she is disabled. Obviously, she wouldn't need a guardian if she weren't disabled.

The other possibility is that the entire Florida guardianship system is somehow deeply unfair. Note that the Schindlers have no principled objection to the system by which the Florida courts adjudicate guardianship disputes. They aren't arguing that all parents should stand next-of-kin to their married children. They don't claim that the federal courts should handle all family law disputes. They agree that the patient's wishes are paramount. All that matters is whether Terri would have wanted a feeding tube.

For all the controversy it has generated, the Schiavo case is remarkably straightforward. Terri Schiavo didn't have a living will. So, as is typical for married people in this situation, her husband Michael became her legal guardian. Michael is responsible for acting as Terri would have wished. However, he did not make the final determination as to Terri's wishes. Instead, he and the Schindlers pleaded their cases to a judge. Having heard the testimony of both sides, the judge ruled that there was "clear and convincing evidence" that Terri Schiavo would not want the feeding tube.

Terri's parents think that they deserve the final word on Terri's wishes. They are demanding the power to speak for their daughter. Why do they deserve this elevated standing?

Some argue that Terri's parents deserve the final say because they are right about what Terri would have wanted and everyone else is wrong.

However, the Schindlers have already had plenty of opportunity to convince the court of their case. Over the past 15 years that Terri has been incapacitated, the Schindlers have claimed that their daughter would have wanted to be kept alive because a) she said so, b) she would have wanted to obey the will of the Pope, and c) she has a much higher level of consciousness and better prospects for recovery than the courts realize. If the Schindlers had been denied the opportunity to present this evidence, then there might be a legitimate worry that they had been denied due process. However, the Schindlers have already presented this evidence to the courts. So far, the courts simply haven't been convinced by the evidence that the Schindlers have brought to bear. They have failed to convince a court that Terri would want to continue in her current state.

When Judge Greer ruled that Terri wouldn't have wanted a feeding tube, he made a finding of fact. As far as the law is concerned, Terri's wishes are no longer up for debate. An appeal court affirmed Greer's finding, noting that even in siding with Michael Schiavo in the controversy, Greer had erred on the side of life. From that point, on the law is crystal clear. If the patient wouldn't have wanted the tube, the tube must come out. That's all there is to it.

The federal legislation is remarkable because it gives Terri Schiavo's parents the right to demand a new trial in federal court. The bill states explicitly that the new trial would disregard the findings of all of the state courts who have ruled on the issue over the years. A new trial would have allowed Terri's parents to reopen the question of Terri's wishes. No Florida court has ever found in favor of Terri's parents. No principle of law in Florida gives them legal standing to sue on behalf of their daughter. Terri's parents had no legal standing until it was granted to them by the legislation. They are not Terri's legal guardians. They have not convinced a court to revoke Michael Schiavo's guardianship of his wife.

The Schiavo legislation is also remarkable in that it applied explicitly and exclusively to Terri Schiavo and her parents. It is not generally considered acceptable to write laws that apply exclusively to a particular case. The law is supposed to be a system of principles that are impartially applicable to anyone who meets the relevant criteria. An impartial law would apply to every case that was relevantly similar to Schiavo's, not just to a particular group of individuals.

The fact that the legislation violates the rule of law also impugns it on the grounds of separation of powers. If Congress is entitled to intervene, it is to protect the rights of Terri Schiavo. However, the only arguments that might establish that Schiavo's rights had been violated should also apply to everyone else in a similar situation. For example, if discrimination against the disabled is a good enough reason to send Schiavo's case to federal court, why shouldn't the same principle apply to all Americans who have suffered discrimination under similar circumstances? If the Florida guardianship system is systematically biased, why should the law protect only Terri's family and not the thousands of other people affected by the system?

The writers of the Schiavo bill probably thought they were being very clever in drafting such a narrowly tailored piece of legislation. By writing a law that applies only to Terri Schiavo and her family, they hoped to avoid accusations of making a general power grab on behalf of Capitol Hill. However, the bill's narrowness is also its undoing. If this bill only applies to one case, it may respect the separation of powers. However, if the bill applies only to one case, it can't claim to be upholding the right to due process as such – otherwise the bill should apply to everyone whose rights were threatened, not just to Terri. When squeezed between due process and the rule of law, the true motivations of the lawmakers become damningly clear. The bill is simply an attempt to further a partisan agenda by granting special privileges to a single family.

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